Applicant A199/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1548

FEDERAL COURT OF AUSTRALIA

Applicant A199/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1548 APPLICANT A199/2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, L. HARDY, MEMBER REFUGEE REVIEW TRIBUNAL AND THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL No S170 of 2003 LANDER J ADELAIDE 22 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 170 OF 2003

BETWEEN: APPLICANT A199/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

L. HARDY, MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 22 DECEMBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 170 OF 2003

BETWEEN: APPLICANT A199/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

L. HARDY, MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: LANDER J

DATE: 22 DECEMBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal given on 22 November 2001. 2 The applicant, an Indian national, arrived in Australia on 11 December 1999. On 6 January 2000 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act) with the Department of Immigration and Multicultural Affairs (the Department). That application was refused by a delegate of the first respondent on 1 February 2000. The applicant sought a review of that decision by the RRT. 3 The applicant's application was provided to the Department by the applicant's solicitors. In it, he indicated his surname and given names. In answer to a question 'What other names have you been known by?' he has written N/A. In answer to the question, 'Place of Birth', he has provided the information, 'Lakhim Kheri, U.P. India'. In answer to the question, 'Your religion (if any)', he has written, 'Hindu'. 4 The application discloses that he married in 1993 in U.P. India. 5 He gave four previous addresses in India: between 1965 and 1990 he lived in a Village, Gopal Pura, Amritsar; from 1990 to 1995 U.P. India; from 1995 to 1997 Sulan H.P. India; and from 1997 to 1999 in Baudhikalan Lakhimpur Kheri U.P. India. 6 He said that he attended school between 1971 and 1981 at a government school in Jethuwal. He was employed between 1981 and 1990 in the Rampal Electrical Works in Amritsar India as an electrician. 7 In support of his application for a protection visa, the applicant compiled a document which is entitled 'Statutory Declaration' and dated 22 December 1999. The document is, in fact, not a statutory declaration. It is simply a document which has been signed by the applicant in the presence of a witness. The statement does not purport to be taken under any oath. Nothing turns on that because there was no suggestion other than that the declaration was of the applicant. 8 The applicant claimed in his statutory declaration that he was born on 11 December 1965 in Gopalpura in the Punjab in India. 9 He said that he became a member of the Sikh Student Federation (SSF) in 1984 when he was 19 years of age and unemployed. At this time Sikhs were subject to terrorisation by the Indian authorities and some were killed by the authorities 'placing tyres around their necks'. In June 1984 the Sikh Golden Temple, Amritsar, was attacked by Indian military and thousands of Sikhs were killed. It was at this time that General Sant Jernail Singh Bhindrawala founded the Khalistan organisation to liberate Punjab from the Indian authorities. 10 He said that at this time many young Sikhs were scared and went into hiding. Some cut off their hair and beard so as to become anonymous. Most, he said, changed their names to Hindi names so that they could not be recognised. 11 He said that he changed his name from [another name] to [XYZ] but he continued to practice the Sikh religion. 12 He said that four of his friends became terrorists in response to themselves being terrorised by the Indian police. Because these people were his best friends, he was arrested by the police force and placed in detention. He said that whilst in detention his lower back was fractured and one of the discs was dislocated. He said that: 'Eventually I had to become a terrorist.' 13 He made public speeches in support of a separate state of Khalistan and in March 1987 was arrested and interrogated. One of his four friends was killed in front of him by the Indian police. 14 Eventually he was released where his parents bribed a police official. 15 He said that between 1987 and June 1990 he remained underground living in the Indian State of Utter Pradesh. During that time he studied the Holy books of Sant Jernial Singh Bhindrawala and continued to record his speeches about the Khalistan organisation. 16 His parents were concerned about his safety and urged him to go overseas. Twice he tried to cross the border to Pakistan but was unsuccessful. He changed his address several times to avoid being detected by the police. 17 In February 1999 his parents succeeded in obtaining a passport by bribing a travel agent. They also obtained a business visa which permitted the applicant to enter Australia. 18 The applicant said in his statutory declaration that he had recently telephoned his parents and had been told that the police were still looking for him and that if he returned to India he would be tortured or perhaps killed. 19 He relied upon the statutory declaration for the grant of a protection visa. 20 He also provided his passport to the delegate. That passport was issued to Rajinder Kumar Sharma, Indian male born on 11 December 1965 at Lakhimpur-Kheri Lucknokl. The passport was valid from 23 February 1999 to 22 February 2009. 21 His application for review went before the Tribunal. 22 The first Tribunal member with conduct of the matter 'relinquished the matter prior to accepting a foreign posting'. The matter was then heard by a reconstituted Tribunal consisting of another person. 23 The Tribunal invited the applicant to attend the hearing before it in Sydney on 28 May 2001. The applicant, who was then living in Griffith in New South Wales, sought a postponement due to health problems. In support of his adjournment request he enclosed medical reports and a letter dated 17 May 2001 from the Multicultural Disability Advocacy Association of NSW. In that letter Ms Laguna wrote: '[The applicant's] application for refugee status will be heard in the Tribunal soon and he is requesting that the conference be held in Griffith so he does not have to travel far and does not have to spend money as he is not receiving any benefits from the government. Currently, [the applicant] is in a hospital in Brisbane undergoing an operation. He has instructed me to request postponement of the hearing in 6 months for him to recuperate. Also I have spoken to his brother, [J] who advised that his letter be sent to btheir hom [sic] address in Farm 231 Slopes Road, Tharbogang.' 24 The re-scheduled hearing, which took place on 14 November 2002 about six months later, was conducted by a video conference link between the Sydney hearing room and a place in Griffith. The applicant attended in Griffith and was supported by a worker from the Multicultural Disabilities Advocacy Association. The hearing was conducted with the assistance of an interpreter. The applicant was unrepresented by an adviser except to the extent to which I have already referred. He did not present any witnesses to the Tribunal. 25 After referring briefly to the history to which I have referred, the Tribunal said: 'At the hearing, held in the safety of Australia, the Applicant appeared without any turban. His hair was short and he had no beard. He told the Tribunal that his full real name was [XYZ] and that he had always been known by that name. He told the Tribunal that he had never been known by any other name, although he had been given the nickname ["X"] by his friends. ["X"] appeared to be a diminutive of [the applicant's stated first name]. The Applicant claimed to have no other names in his primary application, dated 22 December 1999. The Applicant told the Tribunal that he was a Hindu and always had been one. He also said this in his primary application, in clear contradiction of the statement attached to it. He went on to tell the Tribunal that he was one of Hindu Brahmin cast.' 26 There are a number of inconsistencies between the application and the supporting statements in the 'Statutory Declaration'. Those inconsistencies and others were referred to by the Tribunal in its reasons. 27 During the hearing before the RRT, the RRT put to the applicant a number of those inconsistencies. The applicant told the RRT that the Sikh religion was derived from Hinduism. When it was put to him that he claimed to be a Hindu whilst claiming fear of persecution in India for reasons of being a Sikh the applicant claimed that some of his best friends were Sikhs and that he had moved around with them. 28 The Tribunal put to the applicant that his claim that he had joined the Sikh Student Federation (SSF) in 1984 was inconsistent with his claim in his application that he was last a student in 1981. It was put to him that he lacked the credentials necessary for joining the SSF because he was not a student in 1984. It was also put to him that he lacked the religious qualification for joining that organisation, i.e. he was not a Sikh. 29 In answer to a suggestion that he had departed India on a passport under his own name he said that he had always been known by his Sikh name before he adopted the name [XYZ]. It was pointed out to him that he had claimed in his application that his real name was [XYZ] by which he had always been known. The RRT assessed his claimed fear of persecution against his acknowledgment that he had remained living and working in Punjab until 1990 which the RRT determined was inconsistent with that claimed fear. 30 The RRT said: 'The applicant survived in India till [sic] 1999 when he came to Australia. He went to live in Griffith days after he arrived in Australia. He travelled there on a business visa. To do that he would have to have convinced Australian authorities that he was associated with a viable business.' 31 During the hearing, the applicant told the Tribunal he was currently on medication which caused drowsiness. 32 His supporter from the Multicultural Disabilities Advocacy Association suggested that the applicant might have suffered brain damage in the accident in which his arm was injured and that this could be the reason for a number of obviously inconsistent claims. 33 The Tribunal did not believe the applicant. It said: 'The examination of the Applicant's claims in the preceding section shows how inconsistent and baseless the overwhelming bulk of his evidence is. The Tribunal sees no reason to repeat itself. The Applicant's interest in Sikh beliefs could easily have been pursued in Australia. He shows no evidence at all of having retained, let alone consolidated, his interest in the Sikh way of life. The Applicant's survival in the Punjab and other parts of India over the many years between 1984 and 1999 is very strong evidence to the effect that his claimed fears are unfounded. His use of a valid passport recognising what he calls his true identity is strong evidence that he is not being sought as a Sikh activist. That the Applicant obtained a business visa means he has at some stage provided evidence of a viable business operation. This goes against his claims about having to move about India in fear of his life. The Tribunal concludes that the Applicant is and has always been a Hindu. As such, he can live and work practically anywhere in India, even in the Punjab. On the evidence before it, the Tribunal does not accept that the Applicant faces a real chance of Convention – related persecution in India. He is not a refugee.' 34 Section 36 of the Migration Act provides for the grant of protection visas. The criteria for a protection visa is that the applicant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1958 (Refugees Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (Refugees Protocol). 35 A refugee is defined in Article 1A(2) of the Refugees Convention as a person who: '… owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 36 Clearly enough the applicant was a non-citizen in Australia. The question which had to be determined by the delegate and later by the RRT on review was whether he was a person to whom Australia has protection obligations under Article 1A(2) of the Refugees Convention. 37 He would be such a person if, owing to a well founded fear of being persecuted for any of the reasons in Article 1A(2) he is unable, or owing to such fear is unwilling to avail himself of the protection of his country of nationality, India. 38 Two submissions were put to establish the relief sought on this application for judicial review. First it was suggested that the Tribunal had erred in adopting 'what appears to have been a survival test, in circumstances where it should have applied the real chance test'. 39 That submission related to the passage to which I have referred where the RRT spoke of the applicant surviving in India until 1999. 40 There is nothing in that submission. The RRT was not applying any test at all. It was recounting the applicant's history and at the same time observing that the applicant had existed or survived in the country in which he claimed he was subject to persecution. 41 The second matter put was that the applicant had been denied procedural fairness and in particular by the Tribunal proceeding notwithstanding the applicant's medical condition and proceeding to make a determination that the applicant was not a credible witness. 42 The RRT was provided with evidence about the applicant's medical condition. A letter from his lawyers showed that the applicant had been involved in a serious car accident in April 2000 as a result of which he suffered serious personal injuries. The applicant was admitted to the Princess Alexandra Hospital after his accident on 21 April 2000. In a report dated 7 March 2001 the Princess Alexandra Hospital, after referring to the applicant's history, said that when he was last seen on 25 January 2001, he still needed a further operation on his wrist to remove a plate. He also had back pain which was mechanical in nature. 43 A medical report from Dr Sanjay Nijhawan dated 7 May 2001 confirmed the fact that the applicant had been injured in a motor vehicle accident and had sustained 'concussion syndrome as well as fractures of the cervical spine in the region of C6 and C7'. The applicant had also suffered a fracture of his right forearm which had required open reduction and internal fixation. That injury carried with it severe neurological damage and in May 2001 the applicant had symptoms of neuropathic pain down in his left arm with paraesthesia over his left hand. 44 That information was originally provided to the RRT to support the request for an adjournment of the RRT hearing on 28 May 2001 for a period of six months. The RRT adjourned the proposed hearing of the matter until 14 November. On 25 May 2001 the RRT wrote to the applicant: 'Dear Mr [applicant] Re: Application for Review of Decision to Refuse Protection Visa (Refugee Status) The Member reviewing your case has asked me to advise you as follows. The Tribunal notes it has received letters from Princess Alexandra Hospital, Dr Sanjay Nijhawan, and Ms Susan Laguna stating that the applicant was in a serious car accident on 21 April 2000 and may have difficulties attending the hearing scheduled for 10am on 28 May 2001. The Tribunal hereby confirms that it will not proceed with the scheduled hearing. However, it requests your advice on or by 1 July 2001 as to the following matters. The Tribunal notes that the medical advice it has received from the applicant to date is unclear as to his actual ability to attend a hearing. The letter from Princess Alexandra Hospital states that the accident was over a year ago, the applicant was last operated on some nine months ago, and that though he has some disabilities, including back pain, these do not appear such as to preclude a hearing being held, given that the Tribunal hearings are informal and the Tribunal is happy, of course, to have frequent breaks if necessary for the applicant's benefit. Ms Laguna states the applicant will be unable to attend a hearing in Sydney because of the cost involved, and Dr Nijhawan states that the applicant is undergoing rehabilitation and is currently not able to travel to travel to [sic] Sydney because of his injuries, but neither state that the applicant is per se unable to attend a hearing and in fact, Ms Laguna requests that the hearing be held in Griffith (as opposed to Sydney). If the applicant is able to attend a hearing, but for medical reasons is unable to travel to Sydney, the Tribunal is prepared to conduct a hearing with him in Griffith or if, as Ms Laguna suggests, he is in Brisbane, in Brisbane. If this is the case, please provide the Tribunal with specific medical advice as to the reason the applicant cannot travel to Sydney, advise the Tribunal as to where the applicant asks that the hearing be held, and the Tribunal will re-schedule the hearing to the desired location in mid-July 2001. Alternatively, if, as Ms Laguna also indicates in her letter, it may be well over six months before the applicant can attend any hearing irrespective of where it is held, the Tribunal proposes to proceed to determine the matter by way of writing to your client with detailed questions and any adverse country information it will consider, and consider his response and comments, if any, as to the country information. This is because the Tribunal has a duty to determine matters in a timely manner, and in this case, the applicant lodged his primary application in January 2000 and his review application in March 2000, the offer of a hearing was dated 20 February 2001 and his acceptance of the hearing scheduled for 28 May 2001 was dated 5 March 2001. In these circumstances, an indeterminate adjournment of over six months is not appropriate.' 45 The RRT did accede to both requests made by Ms Laguna in her letter of 17 May. It adjourned the hearing for six months and on the adjourned hearing conducted the review by video. 46 Shortly before the hearing on 14 November the applicant provided a medical certificate from Dr Sanjay Nijhawan dated 2 November 2001 which was dictated but not signed by that medical practitioner. He advised that the 'applicant is unable to work because of injuries sustained to his left forearm, post MVA on the 21.4.00 due to the extent of his injuries he is unable to travel for more than two hours at any given time'. For that reason the RRT conducted the hearing by video. The RRT was never advised that the applicant's medical condition precluded or impeded him from putting his case before the RRT. The RRT was entitled to proceed upon the basis that the applicant was unable to travel for more than two hours but otherwise fit to appear. No other medical evidence was presented. No application was made for any further adjournment. 47 There was no doubt that the applicant had suffered serious injuries some 18 months before the hearing. However there was nothing to suggest that those injuries interfered with his capacity either to follow the proceedings or to understand the nature of those proceedings. 48 There was nothing before the RRT which should have alerted the RRT to the fact that the applicant was not fit enough to proceed with the hearing. 49 It was suggested at the hearing that the applicant might have suffered brain damage which had affected his ability to give reliable evidence. There was nothing to support that suggestion and the RRT was entitled, in my opinion, to reject it. 50 The RRT clearly brought to the applicant's attention the very serious inconsistencies between the matters contained in his application and those contained in the supporting 'Statutory Declaration'. More particularly it brought to his attention all of the evidence which suggested that his claim that he was a Sikh or practised the Sikh religion was simply incredible. 51 The applicant's statutory declaration is at such variance with his application that it is not in the least surprising that the RRT reached a conclusion that his account of his claim of fear of persecution could not be accepted. 52 In my opinion nothing has been shown which would indicate procedural unfairness on the part of the Tribunal. 53 In my opinion the application for judicial review should be refused. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.